FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18949/04 by Sergey Viktorovich BLAGOY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 29 March 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Isabelle Berro-Lefèvre , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 3 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Sergey Viktorovich Blagoy , is a Ukrainian national who was born in 1953 and lives in Kharkiv .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1998 the applicant was elected deputy of the Kharkiv City Council , with his mandate expiring in 2002. He was also the deputy chairman of the supervisory board of a company, E.

On 7 December 1999 the Kharkiv Regional Prosecutor ’ s Office instituted criminal proceedings against the applicant for taking a bribe from L. for approving the sale at a reduced price of two crawler transporter s owned by E.

On the same day the applicant was arrested.

On 8 December 1999 the investigator attached the applicant ’ s property.

On an unspecified date the court allegedly ordered that the applicant ’ s telephone conversations be intercepted and his correspondence be monitored.

During his pre-trial detention the applicant was held in a small and cold cell. His health allegedly deteriorated. He embarked on a hunger-strike to show his disagreement with his detention. He was allegedly ill-treated with the purpose of breaking his resolve and making him confess to the crime . The applicant made complaints to the authorities on this account, but to no avail.

On 1 March 2000 the applicant was released under an obligation not to abscond.

During the investigation the charges against the applicant were re-classified on several occasions.

On 20 March 2000 the case was referred to the Kharkiv Regional Court for trial.

On 21 July 2000 the court remitted the case for additional investigation, noting that the prosecution had failed to verify whether the applicant ’ s defence rights had been respected. Moreover, the case file had not been properly prepared, which made it impossible to proceed with the case.

In the course of the additional investigation two accomplices allegedly involved in the incident with L. were also charged.

On 7 November 2001 the case was referred to the Dzerzhynskyy District Court of Kharkiv for trial.

On 18 April 2003 the court found, inter alia , that the applicant had committed a fraud in respect of L. and it sentenced him to three years ’ imprisonment. However, it released him from serving the sentence on the basis of the Amnesty Act.

The applicant appealed.

On 14 October 2003 the Kharkiv Regional Court of Appeal held a hearing in the case. At the hearing the prosecutor, having regard to the applicant ’ s appeal, submitted that the case should be remitted for additional investigation. The court reviewed the case file and decided to quash the judgment of 18 April 2003 and remit the case for additional investigation.

The applicant appealed in cassation against that decision.

On 8 December 2003 the Supreme Court refused to examine the cassation appeal as the judicial decision complained of was not subject to appeal in cassation.

On 5 April 2004 the case was referred to the Kharkiv Regional Police Department for additional investigation.

In May 2005, following a complaint of unlawful prosecution lodged by the applicant, the Kharkiv Regional Prosecutor ’ s Office sent him a letter informing him that his complaint was unsubstantiated and there existed valid reasons for his prosecution. Similar letters were allegedly sent to the domestic authorities concerning similar complaints by the applicant.

On 16 December 2005 the police investigator lifted the attachment of the applicant ’ s property.

On 27 December 2005 the police investigator terminated the criminal proceedings for the reason that there had been no corpus delicti in the applicant ’ s actions.

On 1 February 2006 the Kharkiv Town Prosecutor ’ s office gave its consent to that decision.

The applicant challenged the decision of 27 December 2005 before the local court, seeking that the proceedings be terminated on the ground that there had been no crime rather than that there had been no corpus delicti .

On 2 March 2006 the court rejected the applicant ’ s complaint, noting that the conclusions reached by the investigation were correct and well-founded. It noted that the criminal case had been investigated properly and comprehensively. Accordingly, it found no reason to quash the impugned decision.

On 28 March 2006 the Kharkiv Regional Prosecutor ’ s Office, exercising its supervisory powers under Article 227 of the Code of Criminal Procedure, reviewed the material in the criminal case file and found the following:

“Having examined the material in the criminal case file, the Regional Prosecutor ’ s Office has established that the decision [of 27 December 2005] was adopted prematurely and should be quashed as the necessary and possible investigatory actions have not been conducted in full ... ”

It therefore quashed the decision of 27 December 2005 and reopened the proceedings in the case.

The applicant challenged the decision of 28 March 2006 before the courts, but to no avail. Relying, in particular, on Article 236 of the Code of Criminal Procedure, the courts refused to entertain the complaint on account of their lack jurisdiction at that stage of criminal proceedings.

On 25 May 2007 the police investigator terminated the criminal proceedings for a lack of corpus delicti in the applicant ’ s actions.

The applicant did not institute civil proceedings claiming damages for the alleged breach of his rights in the course of criminal prosecution.

B. Relevant d omestic law

1. Code of Criminal Procedure of 28 December 1960

Article 215. Challenging of the decision on termination of the criminal proceedings

“An investigator ’ s decision on termination of the criminal proceedings may be challenged before a prosecutor within a seven-day period of the date of receipt of a relevant notice or a copy of the decision.

...

... Within a thirty-day period of the receipt of the complaint the prosecutor shall examine the case file and either reverse the decision on termination of the criminal proceedings and renew the investigation, or dismiss the complaint and notify the claimant accordingly. ... ”

Article 216. Renewal of the investigation in the terminated case

“The investigation in a terminated case may be renewed, within the time-limits applying to criminal liability, by a decision of the prosecutor, the head of the investigative department, or – in the case of events falling under Article 236-6 of the Code – by the decision of a court.”

Article 227. The powers of the prosecutor when supervising the enforcement of laws by inquiry and investigation bodies

“When supervising the enforcement of laws by inquiry and investigation bodies, the prosecutor shall be empowered to take the following actions within his competence:

1) request the criminal case files for review from inquiry and investigation bodies ...;

2) quash unlawful and unfounded decisions taken by the investigators and inquirers;

...

8) remit criminal cases for additional investigation, with instructions; ...”

Article 236. Complaints in respect of the prosecutor ’ s actions

“Complaints in respect of the prosecutor ’ s actions during the conduct of the pre-trial investigation or individual investigative actions in the case shall be submitted to the superior prosecutor, who shall consider them in accordance with the procedure and within the terms prescribed by Articles 234 and 235 of this Code.

A complaint about the prosecutor ’ s actions can be lodged with the court.

Complaints about the prosecutor ’ s actions shall be considered by the first-instance court in the course of the preliminary consideration of the case or in the course of its consideration on the merits, unless otherwise provided for by this Code.”

Article 236-5. Challenging of the decision on termination of the criminal proceedings before a court

“A decision of a body of inquiry, an investigator, or a prosecutor on the termination of criminal proceedings can be appealed against to the district (town) court by a person concerned or his/her representative within a seven-day period of receipt of a copy of the decision or the prosecutor ’ s notice of dismissal of the complaint [submitted under Article 215 of the Code].”

Article 236-6. Consideration by a judge of a complaint against the decision on termination of the criminal proceedings

“A complaint against a decision of a body of inquiry, an investigator, or a prosecutor on termination of the criminal proceedings shall be considered by a single judge within five days, or in complex cases within ten days, of receipt of the case file by the court. ... ”

2. The Act “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor ’ s offices and courts” of 1 December 1994

The relevant provisions of the Act read as follows:

Section 1

“Under the provisions of this Act a citizen is entitled to compensation for damages caused by:

1) unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizens ’ rights;

...

3) unlawful conduct of search and seizure activities ... ”

Section 2

“The right to compensation for damages in the amount , and in accordance with the procedure , established by this Act shall arise in cases of:

...

2) the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti , or for lack of evidence of the accused ’ s participation in the commission of the crime;”

Section 3

“In the cases referred to in Section 1 of this Act a citizen shall be compensated for (have returned):

1) the salary and other pecuniary income lost by the citizen as a result of the unlawful actions;

2) the property ... seized or attached by the investigation or inquiry bodies;

...

5) non-pecuniary damage.”

COMPLAINTS

1. The applicant complain ed under Article 3 of the Convention that the conditions of his detention between 22 December 1999 and 1 March 2000 had been unsatisfactory and that he had been ill-treated by the investigative authorities with the purpose of breaking his resolve and making him confess to the crimes .

2. The applicant complained under Article 6 §§ 1 and 3 (b) of the Convention that on 14 October 2003 he had not been given sufficient time to respond to the prosecution ’ s representations during the hearing before the Court of Appeal.

3. The applicant complained under Article 6 § 1 of the Convention that he had had no access to a court of cassation appeal for challenging the decision of 14 October 2003 taken by the Kharkiv Regional Court of Appeal.

4. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive.

5. The applicant complained under Article 6 §§ 1 and 2 of the Convention that the courts dealing with his criminal case had not been impartial.

6. The applicant complained that the prosecutor ’ s office had distributed information concerning the criminal proceedings against him among the domestic authorities, in breach of Article 6 § 2 of the Convention.

7. The applicant complained under Article 6 §§ 1 and 3 (a) of the Convention that he had not been duly informed of the numerous reclassifications of the charges against him and of the procedural decisions during the investigation.

8. The applicant complained under Article 8 of the Convention that his telephone conversations had been intercepted and that his correspondence had been monitored.

9. The applicant complained under Article 1 of Protocol No. 1 that his property had been unlawfully attached by the investigator.

10. The applicant complained that, as a result of the criminal proceedings against him and the imposition of the obligation not to abscond, his freedom of movement had been restricted, contrary to Article 2 of Protocol No. 4.

11. The applicant complained of a violation of Article 13 of the Convention without any further specification.

12. On 14 April 2006 the applicant complained that on 28 March 2006 the decision on the termination of the criminal proceedings against him was quashed unlawfully and in disregard of the fact that that decision had been upheld by a court.

THE LAW

1. The applicant complained that on 28 March 2006 the decision on termination of the criminal proceedings against him was quashed unlawfully and in disregard of the fact that that decision had been upheld by a court.

The Court shall examine the complaint under Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Court considers that it cannot determine the admissibility of this complaint on the basis of the case file , and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant ’ s complaints and considers that, in the light of all the material in its possession , in so far as the matters complained of are within its competence they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning quashing of the decision on termination of criminal proceedings against him ;

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Dean Spielmann Registrar President